Supreme Court New South Wales Medium Neutral Citation: R v Rogerson; R v McNamara (No 56) [2016] NSWSC 773 Hearing dates: 7 June 2016 Date of orders: 07 June 2016 Decision date: 07 June 2016 Jurisdiction: Common Law Before: Bellew J Decision: See [16] Catchwords: CRIMINAL LAW – Jury – Where jury deliberations had commenced and had proceeded for several days – Where juror fell ill – Medical Certificate stating that the juror would be ill for one day – No reference made to the possibility of the juror's illness extending beyond that – Where Crown sought that the juror be discharged and an order made that the deliberations continue with 11 jurors – Application opposed – Application refused Legislation Cited: Jury Act 1977 (NSW) Cases Cited: R v Wu [1999] HCA 52; (1999) 199 CLR 99 Wu v R (1998) 103 A Crim R 416 Category: Procedural and other rulings Parties: Regina – Crown Roger Caleb Rogerson – Accused Glen Patrick McNamara – Accused Representation: Counsel: Mr C Maxwell QC – Crown Mr G Thomas – Accused Rogerson Mr G Wendler – Accused McNamara Solicitors: Director of Public Prosecutions – Crown Katsoolis and Co – Accused Rogerson AHA Taylor Lawyers – Accused McNamara File Number(s): 2014/1574082014/156921 Publication restriction: Nil Judgment EX TEMPORE - REVISED 1. The jury in these proceedings retired in the early afternoon of Thursday 2 June 2016. At approximately 8.45 am today I was advised by the Sheriff that a member of the jury had telephoned to say that he had fallen ill and could not attend court. At that stage I was given no further information about the nature and extent of the juror's illness. I requested the Sheriff to ensure that a medical certificate was provided to me by 2pm today. 2. When the Court convened at 10.00 am I informed counsel of what had transpired. The Crown foreshadowed that he may make application that the juror be discharged and that the deliberations continue with a jury of 11. The Crown asked I take whatever steps might be available to expedite the provision of a medical certificate. In indicating his position, the Crown made reference to (inter alia) the desirability of ensuring, if at all possible, that the jury's deliberations continued without interruption. 3. The Sheriff, at my direction, then telephoned the juror to enquire firstly as to the nature of his illness, and secondly as to what arrangements he had made to obtain medical assistance. The Sheriff was informed that the juror had made arrangements to attend upon a medical practitioner at 10.45 am today. The Sheriff was also informed by the juror that he was suffering from some form of gastroenteritis, and that he was prone to suffering from anxiety. The nature and extent of the latter condition was not further explained. The information provided to the Sheriff was conveyed to counsel. 4. A medical certificate (which is now MFI 217) was subsequently received and provided to me, from which I redacted information which had the potential to identify the juror in question. The Certificate read: "Mr (name of juror) is medically unfit for jury duty today as he has acute viral gastritis today." 1. The certificate is under the hand of Dr Tien Phan. It made no reference to the anxiety to which the juror referred in his earlier conversation with the Sheriff. 2. Appraised of that information, the Crown made an application that I exercise my discretion to discharge the juror and order that the trial continue with eleven members of the jury. The Crown submitted that central to the exercise of my discretion was the necessity to maintain what he described as "the integrity of the trial process". The Crown submitted that the jury were obviously working towards a verdict and had been retired now for some days and that in the circumstances, and even though there had been an intervening weekend since the jury's deliberations commenced, it was undesirable to have the continuity of those deliberations further interrupted. 3. The Crown submitted that even if the discretion was exercised in favour of discharging the juror, there was no danger of the number of the jury descending to anywhere near the minimum number required. The Crown further submitted that, in light of the terms of the certificate, there was a level of uncertainty as to whether the juror would be able to resume tomorrow. The Crown also pointed out that the certificate made no reference to the juror's reported anxiety. The Crown submitted that a combination of all of these factors supported the making of an order that the juror be discharge. 4. Mr Wendler, who appears for McNamara, opposed the Crown's application. Although he made references to the determination being mandatory, he ultimately accepted that it was a matter for the exercise of my discretion, taking into account all relevant factors. He submitted that the operative section was s. 53B(a) of the Jury Act 1977 NSW ("the Act") and that, if I concluded that the discretion should not be exercised under that section, I should then proceed to consider the wider discretion contained in s. 53B(d). Shortly put, Mr Wendler's position was that the evidence established nothing more than the fact that the juror could not attend today. He pointed out, in particular, that there was no evidence before the Court which indicated, one way or the other, what the position might be tomorrow. Although he accepted that if the present situation was to extend into the Crown's position would be stronger, he submitted that to discharge the juror at this point would be premature. 5. Mr Thomas, who appears for Rogerson, also opposed the Crown's application and essentially adopted the submissions made by Mr Wendler. In doing so, he submitted that to the extent that any inference could be drawn from MFI 217, it was that the juror's inability to discharge his functions extended (at least at this point) only to today. He submitted that in light of the length of this trial, the loss of one day would cause no real disruption. Like Mr Wendler, Mr Thomas also appeared to accept that the position might be different if the present situation prevailed tomorrow. 6. Section 53B of the Act is in the following terms: Discretionary discharge of individual juror 53B Discretionary discharge of individual juror The court or coroner may, in the course of any trial or coronial inquest discharge a juror if: (a) the juror (though able to discharge the duties of a juror) has, in the judge's or coroner's opinion, become so ill, infirm or incapacitated as to be likely to become unable to serve as a juror before the jury delivers their verdict or has become so ill as to be a health risk to other jurors or persons present at the trial or coronial inquest, or (b) it appears to the court or coroner (from the juror's own statements or from evidence before the court or coroner) that the juror may not be able to give impartial consideration to the case because of the juror's familiarity with the witnesses, parties or legal representatives in the trial or coronial inquest, any reasonable apprehension of bias or conflict of interest on the part of the juror or any similar reason, or (c) a juror refuses to take part in the jury's deliberations, or (d) it appears to the court or coroner that, for any other reason affecting the juror's ability to perform the functions of a juror, the juror should not continue to act as a juror. Note : Section 22 provides for the continuation of a trial or inquest on the death or discharge of a juror. 1. As the Crown pointed out in argument, there may be some doubt in the present case as to whether s 53B(a) applies at all. Given the view that I have reached, that is not an issue I am required to determine. That said, the terms of s. 53B(a) appear to contemplate the exercise of discretion where a juror is able to discharge his or her duties but has become so ill to the point where (inter alia) he or she is likely to become unable to serve as a juror. On the evidence before me the juror in question is not able to discharge his duties, at least today. If that interpretation were correct, then the Crown's application would attract the application of s. 53B(d), which confers a wide discretion to discharge a juror. Irrespective of the provision pursuant to which any discretion might be exercised, I have come to the conclusion that the Crown's application should be refused. 2. Some of the factors which inform the exercise of the discretion were discussed in the decision of the High Court in R v Wu [1999] HCA 52; (1999) 199 CLR 99 (as well as in the decision of the Court of Criminal Appeal: Wu v R (1998) 103 A Crim R 416). The facts of that case are similar to those in the present case before me, at least to the extent that the issue involved the discharge of a juror on account of illness. 3. There is a necessity in a case such as the present to obtain such information as might be available and to engage in a discussion with counsel before making any determination. Factors which inform the exercise of the discretion include the length of the trial, and the consequent hardship to an accused. Whilst the Act obviously contemplates an accused being tried by a jury of less than 12 persons, I must have regard to the right of an accused person to a trial by a jury of 12. The desirability of ensuring that the trial proceeds without undue delay is also a relevant consideration. 4. Obviously, the present trial has proceeded for far longer than was initially envisaged. As a consequence, the members of the jury have been put to considerable inconvenience over a long period of time. However on the evidence before me, the circumstances which prevent the juror from attending are limited to today. There is nothing in MFI 217 which might suggest that the problem will extend into tomorrow. It follows that as matters presently stand, if I were to refuse the Crown's application what will be lost in terms of the jury's deliberations will be one day. Counsel for each of the accused, without ultimately conceding the point, have recognised that if the present situation were to extend into tomorrow, the Crown's position would clearly be stronger. 5. In my view, whilst there will necessarily be some degree of interruption to deliberations if the remaining 11 jurors are sent away and asked to come back tomorrow, such interruption is not of a magnitude which would justify the Crown's application being granted. Whilst I accept unreservedly the Crown's submission that it is important to preserve the integrity of the trial process, I am not satisfied that such integrity will be compromised in any way at all if the juror is given an opportunity to recuperate today, with a view to deliberations resuming tomorrow. 6. For those reasons, the Crown's application is refused. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 June 2016